Excerpt: - .....cruelty as would entitle the wife to divorce her husband, still there should be a finding by the learned judge on the question as to whether there was such ill-treatment although it may not amount to cruelty in the eye of the law, as would be a sufficient defence in a suit for restitution of conjugal rights. secondly, it has been contended that the learned subordinate judge has been in error in interpreting the expression 'i shall not go to parabash' and that he is wrong in holding that it only means that the husband shall not go to other countries without the permission of the wife or that he shall not domicile in the lands without her permission and that, as a matter of fact, the expression substantially means that the husband would not desert the wife. it is further said, that, if.....

Judgment:

M.N. Mukerji, J.

1. This appeal arises out of a suit for restitution of conjugal rights in which the plaintiff, the husband, after being unsuccessful in the Court of first instance, has obtained a decree in the lower Appellate Court. The defendants are the appellants in this Court, the defendant No. 1 being the wife. The two grounds put forward in the appeal on behalf of the appellants arise upon a clause in the Kabilnama which has been specified therein as the third clause. That clause runs thus: 'Condition No. 3 I shall not abuse my wife or beat her and I shall not go to parabash without her permission nor shall I marry again.'

2. The learned Vakil appearing on behalf of the appellants has contended, first, that, although the learned Subordinate Judge has found that the ill-treatment, if any, which may be taken to have been proved as having been caused by the husband to the wife did not amount to such cruelty as would entitle the wife to divorce her husband, still there should be a finding by the learned Judge on the question as to whether there was such ill-treatment although it may not amount to cruelty in the eye of the law, as would be a sufficient defence in a suit for restitution of conjugal rights. Secondly, it has been contended that the learned Subordinate Judge has been in error in interpreting the expression 'I shall not go to parabash' and that he is wrong in holding that it only means that the husband shall not go to other countries without the permission of the wife or that he shall not domicile in the lands without her permission and that, as a matter of fact, the expression substantially means that the husband would not desert the wife. It is further said, that, if it was found that the husband did not maintain the wife for a period of about eighteen months or so, it should have been held, upon the circumstances of the case, that there was such a desertion and that there was a breach of the aforesaid condition and, on that ground, the learned Judge should have refused a decree for restitution of conjugal rights.

3. Now, with reference to the first of these contentions reliance has been placed upon the decision of the Privy Council in the case of Moonshee Buzloor Raheem v. Shumsonissa Begum (1867) 11 M.I.A. 551 and certain passages appearing at pp. 611 and 612 of the report have been relied upon as authority for the proposition that it is not absolutely necessary to resist a claim for restitution of conjugal rights; that the ill-treatment should be of such description as would amount to cruelty sufficient to obtain a divorce under the English law.

4. Their Lordships, at p. 611, quoting the Hedaya, observed as follows: 'As to personal violence there are certain passages in the Hedaya which, founded on a text in the Kuran imply that the husband may use it for correction; but this right of corporal chastisement is expressly said to 'be restricted to the condition of safety'; and it may be questioned whether these authorities go to the full length of the Fatwa at p. 14 of the record (see Hedga, Vol. II, Book VII, Ch. 6, pp. 76-81). The Mahomedan law on a question of what is legal cruelty between man and wife would probably not differ materially from our own of which one of the most recente expositions is the following:-'There must be actual violence of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it.'

5. Thereafter, at p. 612, will be found the following further observations. 'If, however, it be granted that according to Mahomedan law the husband may sue to enforce his right to the custody of his wife's person and that, if her defence be cruelty, she must prove cruelty of the kind just described, it by no means follows that she has not other defences to the suit which would not be admitted by our ecclesiastical Courts in a suit for the restitution of conjugal rights.'

6. Further on, their Lordships, at p. 615,;, made the following observation: 'It seems to them clear that if cruelty in a degree rendering it unsafe for the wife to return to her husband's dominion were established, the Court might refuse to send her back. It may be too that gross failure by the husband of the performance of the obligations which the marriage contract imposes on him for the benefit of the wife might, if properly proved, afford good grounds for the refusing to him the assistance of the Court.' Now, it is quite clear upon these observations that, in a case where the wife seeks to resist the enforcement of a claim for restitution of conjugal rights, it is not necessary for her absolutely to establish that there was cruelty such as would justify a divorce from her husband, but that it is enough if she proves that there has been ill-treatment of some sort which would create in her an apprehension as to her life or safety.

7. This principle has also been recognized in the case of Hamid Husain v. Kubra Begum (1918) 40 All. 332, in a case which has also been relied upon by the learned Vakil appearing on behalf of the appellants. It will be seen that in that case, the lower Appellate Court was required to come to a finding upon two issues that were framed by the High Court in a suit for restitution of conjugal rights. The issues framed were (1): 'Is it proved that the defendant has in the past been subjected to ill-treatment, physical or mental by the plaintiff?' (the plaintiff there being the husband- the defendant the wife); and (2) 'On the case as a whole, is the Court of opinion that the defendant has reasonable grounds for believing that her health and safety would be endangered if she returned to her husband's custody?' The lower Appellate Court, upon the evidence in the case came to the finding that there had been a good deal of ill-treatment short of physical cruelty and recorded the opinion that, by return to her husband's custody, the defendant's health and safety would be endangered.

8. The High Court having regard to those findings refused to interfere with the decree which the lower Appellate Court had passed dismissing the plaintiff's suit. The next case relied upon with regard to this contention is the case of Husaini Begum v. Mohammud Rustam Ali Khan (1907)29 All. 222, where the following proposition of law was laid down. 'In a suit for restitution of conjugal rights the parties being Mahomedans, if the defendant raises a plea of legal cruelty, the facts to be proved to establish such a plea are similar to those which must be proved to establish a similar plea under the English law. But in a suit for restitution brought by the husband misconduct of the plaintiff falling short of legal cruelty may be a ground for the Court refusing relief. Thus where the plaintiff apparently only brought his suit on account of his wife having filed another suit against the plaintiff's father, and in his plaint accused his wife of immorality of the most serious kind, a charge which he totally failed to substantiate, it was held that the Court would be justified in refusing him relief, and, on the general facts of the case, also, it having been found that the defendant had reasonable grounds for believing that her health and safety would be endangered if she returned to her husband's house, the Court refused to grant a decree for restitution of conjugal rights. There can be no doubt, however, that the principle enunciated by the learned Vakil appearing on behalf of the appellants is well settled.

9. Judging by that principle let us see what the findings of the learned Subordinate Judge in the present case amount to? Do they really dispose of the questions which the learned Judge had to try or is it necessary that there should be a remand in order to enable him to come to a proper finding on the question as to whether, although legal cruelty has not been established, there was such ill-treatment on the part of the husband as would justify a refusal on the part of the Court to grant him a decree for restitution of conjugal rights?

10. In order to appreciate the nature of the cruelty or the ill-treatment that was alleged in the case, it is necessary to refer to the ill-treatment which is said to have formed the justification for the first defendant's executing the talaknama, not that she is precluded from proving any other sort of ill-treatment in the suit but for seeing exactly what her case was. It would appear from the talaknama which has been proved in this case and marked as Exhibit B that there the defendant No. 1, stated this: 'At present, I am passing my days in great difficulty and am suffering great trouble for want of food and raiment and you have left me and gone away to a different place and you are not maintaining me and you are also not taking me.' That being the allegation in the talaknama which, according to the defendant No. 1, formed the justification for the execution on her part of the document, it is rather strange that in her defence to the present suit she would put forward other sorts of ill-treatment as justifying the divorce. Be that as it may, it has been found by the learned Subordinate Judge that the evidence with regard to this cruelty, as it stands, when analysed, amounts to simple chastisement once or twice. The learned Judge also finds that it is impossible to believe that evidence. If that be the finding of the learned Judge on the question of cruelty or ill-treatment, then there is scarcely any room for the appellant's contention noted above. Furthermore, even if it was proved, it cannot be said to be such cruelty or ill-treatment as in the light of the decisions So which I have inferred, would be sufficient to create a reasonable apprehension in the mind of the defendant No. 1 that there would be any danger to her life, health or safety in case she has got to return to her husband. I, therefore, think that the finding of the learned Subordinate Judge with regard to this question is sufficient for the purpose of disposing of the defence based on the ground of ill-treatment or cruelty that was taken by the defendant No. 1, to retort the plaintiff's claim for restitution of conjugal rights.

11. Now, with regard to the second contention, I am not prepared fully to agree in the interpretation which the learned Subordinate Judge has given to the expression ' I shall not go to Parabash without your permission.' The learned Judge says that it means that the husband was stipulating not to go to a different place and acquire a domicile in other lands. Judging from the words appearing In the document, it seems to me that the two parts of this clause, one to the effect that the husband will not go to Parabash and that he will not marry again are inter-related being joined by the letter O' and stand aloof from the other conditions in that clause from which they are separate by the word 'ebong' and that the real meaning of this expression is that the husband was stipulating that he would not marry again and live at a different place, without the permission of his wife. That interpretation seems to be more in consonance with the circumstances of the case, inasmuch as the husband was admittedly a khana damad, that is to say, a ghur jamai and it might have been in the contemplation of the parties that the husband might not marry again and go to live in the house of his other wife abandoning the present defendant No. 1. Be that as it may, nothing has been proved in this case upon the findings of the learned Subordinate Judge to justify the inference that there was a desertion of the wife by the husband. All that has been found is that, for about eighteen months, the husband did not maintain the wife. That would not amount to desertion in the eye of the law, and, as has been pointed out by the learned Vakil appearing on behalf of the respondent, inability to maintain the wife is no ground for separation under the Hanafi Law. ' A wife under the Hanafi rules cannot obtain an order for separation either for desertion, or inability or refusal to maintain her.' (See Amir Ali's Mahomedan Law, third Edition, Vol. II, p. 453). The learned Subordinate Judge has found that there was no proof of breach of any of the other conditions mentioned in the Kabulinama and that no grounds mentioned in the Talaknama or in the written statement of the defendant No. 1, as being the grounds justifying her refusal to live with her husband, have been made out. In my opinion, the learned Judge was right in passing a decree in favour of the plaintiff. I would, therefore, dismiss this appeal with costs.